40 F.

3d 512

UNITED STATES of America, Appellee,

v.
Carlos BERGODERE, Defendant, Appellant.
No. 94-1520.

United States Court of Appeals,

First Circuit.
Heard Nov. 8, 1994.
Decided Nov. 30, 1994.

David A.F. Lewis, for appellant.

Zechariah Chafee, Asst. U.S. Atty., with whom Sheldon Whitehouse, U.S.
Atty., was on brief, for appellee.
Before SELYA, CYR, and STAHL, Circuit Judges.
SELYA, Circuit Judge.

This appeal raises questions of first impression in this circuit concerning how
courts should apply the lessons of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986), and its progeny. After answering those questions,
we conclude that the district court did not err in permitting the government to
eliminate the lone African-American juror by means of a peremptory challenge.
Since appellant's other assignments of error are equally unavailing, we affirm
the judgment below.

I. BACKGROUND
2

On March 9, 1993, a team of law enforcement officers executed a search

warrant at the residence of defendant-appellant Carlos Bergodere in
Providence, Rhode Island. When the officers arrived, only appellant and his
wife, Cynthia Eastwood, were on the premises.

Appellant's apartment consisted of a kitchen, dining area, living room, and two
bedrooms. During the search, the officers discovered three "browns" of heroin

in the kitchen1 and an operable .9 millimeter Luger pistol, fully loaded, under
the seat cushions of the living room sofa. Several rounds of live ammunition,
not corresponding to the Luger, were found in appellant's bedroom. The
officers arrested appellant and seized additional quantities of heroin from his
person.
4

In due season, a federal grand jury returned an indictment charging appellant

with possession of a firearm after a previous felony conviction, see 18 U.S.C.
Sec. 922(g)(1), possession of heroin with intent to distribute, see 21 U.S.C. Sec.
841(a)(1) & (b)(1)(C), and using a firearm during and in relation to a drugtrafficking crime, see 18 U.S.C. Sec. 924(c)(1). Appellant entered a "not guilty"
plea. In time, the court empaneled a jury. Contrary to the more common federal
practice, the judge permitted the attorneys to conduct the voir dire.

In the course of jury selection, the following colloquy took place between the
prosecutor and a black venireperson, Robert Goodrum.

6Mr. Chafee: Mr. Goodrum, where do you work, sir?

7 Goodrum: I work in Newport. I'm area director for an adolescent outreach
Mr.
program.
8Mr. Chafee: ... [A]re these young people who are having trouble in the community?
9Mr. Goodrum: Yes, it varies from kids doing well, to kids in places like this.
******
10
11 Chafee: Obviously you have a big heart for people in trouble. You're going to be
Mr.
asked to sit in judgment on somebody. Can you be fair and impartial to both the
Government and the defendant in this case, listen to the evidence and call it ...
according to the law given to you by Judge Lagueux?
Mr. Goodrum: Well, it will be a struggle but I know I can do it right, yeah.
12
13

Later on, defense counsel engaged in a colloquy with Mr. Goodrum.

14 Gillan: ... Why do you feel it would be a struggle for you to sit in judgment on
Mr.
this case?
15 Goodrum: I just have problems I guess with adults and drugs as I deal with kids
Mr.
and drugs.

******
16
17 Gillan: And what if an adult is addicted to drugs. How does that make you feel?
Mr.
Mr. Goodrum: ... I can deal with that. I mean, you know, when I think about people
who might be soliciting I have problems.
Mr. Gillan: People might be soliciting children?
18
Mr. Goodrum: Right.
19
20 Gillan: Okay. but if that's not the evidence in this case then ... you won't have a
Mr.
problem with that?
Mr. Goodrum: Then I wouldn't have a problem with it.
21
22

The prosecution dismissed Goodrum from further service. Appellant objected.

The district court upheld the strike, apparently finding that appellant failed to
make a prima facie showing that the strike was motivated by a race-based
animus. In the process, the judge specifically noted Goodrum's avowed doubts
as to whether he could be an impartial juror.

23

A jury devoid of black members eventually convicted appellant on all counts.

This appeal followed.

II. THE PEREMPTORY CHALLENGE

24

Appellant's most striking argument concerns the prosecution's challenge of the

juror, Goodrum. We begin by tackling that matter.

A. The Framework for Inquiry.

25
26

The Supreme Court has recognized that in civil and criminal trials potential
jurors, as well as litigants, have an equal protection right to jury selection
procedures that are free from group stereotypes rooted in, and reflective of,
historical prejudice. See J.E.B. v. Alabama, --- U.S. ----, ----, 114 S.Ct. 1419,
1421, 128 L.Ed.2d 89 (1994) (finding gender, like race, to be an
unconstitutional proxy for juror competence and impartiality); Powers v. Ohio,
499 U.S. 400, 402, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1990) (stating that
racial discrimination in the selection of jurors offends the dignity of persons and
the integrity of courts).

27

In evaluating an equal protection challenge to a prosecutor's use of a

peremptory strike, a three-part framework should be employed. See Batson,

476 U.S. at 96-98, 106 S.Ct. at 1722-24; United States v. Perez, 35 F.3d 632,
635 (1st Cir.1994). First, the defendant must make a prima facie showing of
discrimination in the prosecutor's launching of the strike. See Batson, 476 U.S.
at 96-97, 106 S.Ct. at 1722-23. If the defendant fulfills this requirement by
establishing, say, a prima facie case of a racially driven impetus,2 then the
prosecutor must proffer a race-neutral explanation for having challenged the
juror. See id. at 97, 106 S.Ct. at 1723; see also United States v. Lewis, 40 F.3d
1325, 1341-42 (1st Cir.1994). The prosecutor's burden is merely a burden of
production, not a burden of persuasion. If the prosecutor complies, then, at the
third and final stage, the district court must decide whether the defendant has
carried the ultimate burden of proving that the strike constituted purposeful
discrimination on the basis of race. See Hernandez v. New York, 500 U.S. 352,
358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991) (discussing Batson );
Perez, 35 F.3d at 635.
28

In making a Batson challenge, the defendant retains the burden of proof

throughout. As part and parcel of this burden, he must carry the devoir of
persuasion regarding the existence of a prima facie case of race-based
discrimination in the jury selection process. See Batson, 476 U.S. at 96-97, 106
S.Ct. at 1722-23. The combination of factors needed to establish a prima facie
case are limned in Chakouian v. Moran, 975 F.2d 931, 933 (1st Cir.1992).
Initially, the defendant must demonstrate that the prosecution's challenge was
directed at a member of a cognizable racial group.3 See Batson, 476 U.S. at 96,
106 S.Ct. at 1722; Chakouian, 975 F.2d at 933. Next, the defendant must show
that the challenge was peremptory rather than for cause, thus bringing into play
the Supreme Court's admonition that "peremptory challenges constitute a jury
selection practice that permits 'those to discriminate who are of a mind to
discriminate.' " Batson, 476 U.S. at 96, 106 S.Ct. at 1723 (quoting Avery v.
Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)). Finally,
the defendant must show circumstances sufficient, when combined with the
two antecedent facts, to raise an inference that the prosecutor struck the
venireperson on account of race. See id. While the prima facie case requirement
is not onerous, neither can it be taken for granted.

B. Standard of Review.
29
30

This court has yet to articulate the appropriate standard against which to test a
trial court's ruling that a defendant has--or has not--made out a prima facie case
in connection with a Batson challenge. We do so today.

31

A careful reading of Batson convinces us that, although this determination can

be characterized as a mixed question of law and fact, it is fact-sensitive, and,

therefore, should be reviewed under the familiar clear-error standard. See
generally In re Howard, 996 F.2d 1320, 1328 (1st Cir.1993) ("The standard of
review applicable to mixed questions usually depends upon where they fall
along a degree-of-deference continuum: the more fact-dominated the question,
the more likely it is that the trier's resolution of it will be accepted unless
shown to be clearly erroneous."). Our holding is consistent with the Supreme
Court's expression of confidence that trial judges, experienced in conducting
and supervising voir dire, will likely be able to identify prima facie cases of
discrimination. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Our holding is
also consistent with the decisions of the five other courts of appeals that thus
far have confronted the same standard-of-review problem and resolved it in like
manner. See United States v. Vasquez-Lopez, 22 F.3d 900, 901 (9th Cir.), cert.
denied, --- U.S. ----, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994); United States v.
Branch, 989 F.2d 752, 755 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3060,
125 L.Ed.2d 742 (1993); United States v. Casper, 956 F.2d 416, 418 (3d
Cir.1992); United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990); United
States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, 495 U.S.
934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990).
C. Analysis.
32
33

We detect no clear error in the district court's rejection of appellant's proffered

prima facie case. Although the striking of the only juror of a particular race can
be sufficient to ground a permissive inference of discrimination in certain
circumstances, see, e.g., United States v. Roan Eagle, 867 F.2d 436, 441 (8th
Cir.), cert. denied, 490 U.S. 1028, 109 S.Ct. 1764, 104 L.Ed.2d 199 (1989),
such a strike does not raise a necessary inference of discrimination, see
Vasquez-Lopez, 22 F.3d at 902. Phrased another way, the mere fact that the
prosecutor challenges the only juror of a particular race, without more, does not
automatically give rise to an inescapable inference of discriminatory intent. A
defendant who advances a Batson argument ordinarily should "come forward
with facts, not just numbers alone." Moore, 895 F.2d at 485; accord United
States v. Dawn, 897 F.2d 1444, 1448 (8th Cir.), cert. denied, 498 U.S. 960, 111
S.Ct. 389, 112 L.Ed.2d 400 (1990).

34

Here, the defendant provided nothing in the way of either direct or

circumstantial proof to buttress the naked statistic on which he relies. This
failure is all the more glaring because the circumstances attendant to the
Goodrum strike point away from an inference of discrimination. This case
involves a single strike, not multiple strikes. The government's other
peremptories were exercised in an unexceptionable manner. Appellant essayed

no proffer showing that either the particular prosecutor or the prosecutor's

office regularly engaged in a pattern of suspicious strikes. The prosecutor's
questions and statements during voir dire do not suggest racial discrimination,
but, instead, seem to reflect a concern with the prospective juror's ability to
reach a fair and impartial verdict. This is of considerable importance, as the
Court has directed trial judges in such circumstances to examine "the
prosecutor's questions and statements during voir dire" for signs of purposeful
discrimination. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.
35

The capstone, of course, is that the colloquy between the prospective juror and
the two lawyers reflects a legitimate, nondiscriminatory reason why
conscientious counsel might desire to exclude the juror from further service.
After all, Goodrum admitted that it would "be a struggle" to achieve
impartiality, and that he had a "problem" with cases involving "adults and
drugs." The prosecutor, understandably concerned that the talesman "ha[d] a
big heart for people in trouble," had no obligation either to ignore these
comments or to accept at face value Goodrum's prediction that, in the end, he
could put aside his "problem" and "do it right."

36

Voir dire represents not only the introduction of potential jurors to the factual
and legal issues to be aired at trial, see Powers, 499 U.S. at 412, 111 S.Ct. at
1371, but also the lawyers' introduction to the venire. Its core purpose is to
provide a firm foundation for ferreting out bias. A healthy byproduct is that a
careful voir dire eliminates any need to rely on stereotypes. See J.E.B., --- U.S.
at ----, 114 S.Ct. at 1429; United States v. Whitt, 718 F.2d 1494, 1497 (10th
Cir.1983). Withal, the line between discriminatory and nondiscriminatory
strikes is not always easily drawn. As courts labor to plot it, trial lawyers are
entitled, at a bare minimum, to a bit of breathing room. In the end, jury
selection is not an exact science. Its watchwords are judgment, flexibility, and
discretion. Although attorneys cannot be permitted to exercise peremptory
challenges based on race or gender, they are not prohibited altogether from
striking venirepersons of a particular race or gender.

37

We will not paint the lily. Evaluative judgments concerning juror suitability are
often made partially in response to nuance, demeanor, body language, and a
host of kindred considerations. Thus, the trial judge, who sees and hears both
the prospective juror and the opposing attorneys in action, is in the best
position to pass judgment on counsel's motives. Recognizing that we ought to
cede considerable deference to a district judge who observes the voir dire at
first hand, see Batson, 476 U.S. at 97, 106 S.Ct. at 1723, we refuse to secondguess Judge Lagueux's implicit finding that the prosecutor struck Goodrum
because of doubts about Goodrum's "big heart" and impending "struggle,"

rather than for some evil purpose. It follows that the court did not err in finding
that appellant failed to establish a prima facie case of race-based discrimination
in the prosecution's use of its peremptory challenges.4
III. OTHER ASSIGNMENTS OF ERROR
38

Appellant advances three additional assignments of error. We consider two of

them, both of which relate to matters of evidentiary sufficiency.5 Appellant's
final assignment of error raises the boggart of ineffective assistance of trial
counsel. This claim was not asserted in the district court and is not properly
before us on direct appeal. See United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir.1993) (holding that absent extraordinary circumstances, fact-specific claims
asserting ineffective assistance of counsel are not cognizable on direct appeal;
collecting cases to like effect), cert. denied, --- U.S. ----, 114 S.Ct. 1839, 128
L.Ed.2d 466 (1994).A. Standard of Review.

39

The path that this court traverses to review sufficiency challenges is well worn.
We inspect the evidence in the light most friendly to the verdict, indulging all
reasonable inferences in the verdict's favor and resolving all credibility disputes
in the same way. We then determine whether a rational jury could find guilt
beyond a reasonable doubt. See, e.g., United States v. Echeverri, 982 F.2d 675,
677 (1st Cir.1993); United States v. Maraj, 947 F.2d 520, 522-23 (1st
Cir.1991); United States v. Boylan, 898 F.2d 230, 243 (1st Cir.), cert. denied,
498 U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990). The conviction stands so
long as the guilty verdict comports with "a plausible rendition of the record."
United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), cert. denied, --- U.S. ---, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993).

B. Count 2.
40
41

To sustain a conviction under 21 U.S.C. Sec. 841(a)(1), the prosecution must

establish beyond a reasonable doubt that the defendant knowingly or
intentionally possessed a controlled substance with intent to distribute it. See,
e.g., United States v. de Jesus-Rios, 990 F.2d 672, 680 (1st Cir.1993). The
element of possession can be satisfied by evidence that demonstrates either
actual or constructive possession. See United States v. Gomez-Villamizar, 981
F.2d 621, 624 (1st Cir.1992).

42

Appellant does not seriously contest the element of possession, but, instead,
concentrates his fire on the element of specific intent. He alleges that the
evidence, taken most congenially to the government's case, merely shows that
he possessed heroin (say, for personal consumption), not that he intended to

distribute it. We read the record differently. An intent to distribute drugs does
not demand proof by direct evidence but can be made manifest through
circumstantial evidence alone. See Echeverri, 982 F.2d at 678; United States v.
Desmarais, 938 F.2d 347, 352 (1st Cir.1991). In this connection, we have long
recognized that factors such as the quantity and purity of the drugs confiscated
by the authorities can support an inference of intent to distribute. See, e.g.,
Echeverri, 982 F.2d at 678; United States v. Ocampo-Guarin, 968 F.2d 1406,
1410 (1st Cir.1992); United States v. Batista-Polanco, 927 F.2d 14, 18-19 (1st
Cir.1991).
43

In this case, the evidence easily sustained a finding of intent to distribute. The
officers seized three browns from appellant's kitchen and eleven glassines from
his pocket. Thus, both the quantity of heroin and the method of packaging
militated toward a conclusion that appellant was himself a dealer. The total
value of the heroin seized--over $1,500--suggested the same conclusion.
Furthermore, an experienced detective testified that, in his expert opinion, the
quantity, packaging, and value of the heroin indicated that it was intended for
distribution.

44

To be sure, this evidence was not ironclad. As appellant notes, it did not rule
out the possibility that he possessed the heroin for personal consumption. But
the law requires only that the evidence, fairly viewed, be capable of supporting
the jury's verdict, not that it exclude every hypothesis consistent with a claim of
innocence. See Echeverri, 982 F.2d at 678; Boylan, 898 F.2d at 243.
Accordingly, we find no infirmity in appellant's conviction for possession of
heroin with intent to distribute.

C. Count 3.
45
46

The final portion of appellant's sufficiency challenge concerns the charged

violation of 18 U.S.C. Sec. 924(c)(1). It is well settled that, under this statute,
the emphasis is on a firearm's availability for use, regardless of whether the
weapon is actually used in the commission of a drug-trafficking crime. See
United States v. Paulino, 13 F.3d 20, 26 (1st Cir.1994); United States v.
Hadfield, 918 F.2d 987, 998 (1st Cir.1990) (collecting cases), cert. denied, 500
U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991). The instant case falls
squarely within the boundaries established in Hadfield, a case in which we
stated that, under section 924(c), the principal inquiry should focus on the
presence or absence of a "facilitative nexus" between the charged offense and
the discovered firearm. See Hadfield, 918 F.2d at 998. In applying Hadfield, an
inquiring court's primary concern is not whether the gun was "instantly
available" or "exclusively dedicated to the narcotics trade," but whether it was

"available for use" in that regard. Id.; accord United States v. Castro-Lara, 970
F.2d 976, 983 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2935, 124
L.Ed.2d 684 (1993). Under this test, if an operable firearm is found in close
proximity to a room or rooms in which drug distribution, processing, or storage
occurs, then the factfinder ordinarily is free to conclude that a defendant having
evident ties to the premises and the drugs knew about the gun and intended it to
be available for use in relation to the narcotics enterprise. See Hadfield, 918
F.2d at 998.
47

The authorities arrested appellant in his apartment. From the quantity of heroin
found on the premises the jury could reasonably conclude that the dwelling
served as a storehouse for at least some of appellant's heroin or, perhaps, a
retail sales outlet. See, e.g., Echeverri, 982 F.2d at 678. As a lessee of the
apartment and a person residing there, appellant had a significant degree of
control over the contents of the premises. See id. Within wide limits, he had the
ability to determine who and what could enter his place of abode. Officers
located the weapon under the seat cushions of the living room couch-proximate to the drugs and easily accessible to an individual who knew its
whereabouts. Of pivotal importance, the gun was fully loaded. The police
found additional ammunition in appellant's bedroom which, although, of a
different caliber, indicated that appellant was no stranger to firearms. On this
basis, a rational juror surely could conclude that appellant kept a loaded gun
handy to protect his heroin supply. As we have said before, "[t]he law is not so
struthious as to compel a criminal jury to ignore that which is perfectly
obvious." United States v. Ingraham, 832 F.2d 229, 240 (1st Cir.1987), cert.
denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988).

48

We recognize that the government's case was not open-and-shut. For example,
the proof at trial established that appellant's landlord, Felipe Moronto, actually
owned the pistol, and appellant makes much of this fact. We agree that this
datum is relevant--but it is hardly determinative. What matters is that the
totality of the evidence suffices to permit--and in our estimation to support quite
amply--a finding that a facilitative nexus existed between the weapon and
appellant's drug-distribution activities. See, e.g., United States v. ReyesMercado, 22 F.3d 363, 367 (1st Cir.1994); Paulino, 13 F.3d at 26; Castro-Lara,
970 F.2d at 983. Therefore, the claim of evidentiary insufficiency fails.

IV. CONCLUSION
49

We need go no further. For aught that appears, appellant was fairly tried and
justly convicted before a lawfully constituted jury. For the reasons stated
herein, we affirm the judgment of conviction, without prejudice, however, to

appellant's right to pursue his ineffective assistance of counsel claim at a proper

time and in a proper venue.
50

It is so ordered.

A "brown" is a common unit of sale in the heroin trade. One brown comprises
50 glassine packets, each containing a dose of heroin. A brown has a street
value of approximately $500

The three-part framework is the same for gender as for race. See J.E.B., --- U.S.
at ----, 114 S.Ct. at 1429

The defendant and the challenged juror need not be members of the same race.
See Powers, 499 U.S. at 409-10, 111 S.Ct. at 1369-70 (eliminating Batson's
"racial identity" requirement); Chakouian, 975 F.2d at 934. Thus, the fact that
appellant is not himself of African-American ancestry does not end our inquiry

Because appellant failed to make the requisite first-stage showing, the burden
never shifted to the prosecutor to articulate a race-neutral explanation for the
strike. Even so, it might have been wise for the judge to have asked the
prosecutor to proffer an explicit statement of the basis for the strike, if only to
confirm the judge's intuition and flesh out the record on appeal. See United
States v. Johnson, 873 F.2d 1137, 1140 n. 3 (8th Cir.1989), cert. denied, 498
U.S. 924, 111 S.Ct. 304, 112 L.Ed.2d 257 (1990)

The jury convicted appellant on three counts, namely, possession of a firearm

after a previous felony conviction (count 1), possession of heroin with intent to
distribute (count 2), and using a firearm in relation to a drug-trafficking crime
(count 3). In the district court, appellant unsuccessfully sought judgment of
acquittal on all three counts. On appeal, however, he challenges the sufficiency
of the evidence only in regard to counts 2 and 3